Illegal Inquiry says Veritas

Parliamentary, legal and civil rights watchdog, Veritas, has said that the appointment of the Kgalema Motlanthe led Commission of Inquiry to look into the events of August 1 was illegal. However, Veritas goes on to say that President Emmerson Mnangagwa can still rectify the situation when a new cabinet is appointed. In its latest bulletin, Veritas says

Elections alone are not giving the Zimbabwe government the legitimacy we all so badly need. This is illustrated by the following statement: “When not shooting civilians in the back, Zimbabwe’s ruling élite seems to be shooting itself in the foot.” Those words appeared in The Economist on 11th August, in an article commenting on post-election violence. The Economist is a highly respected magazine read by influential people in government and business throughout the world, and its comments on Zimbabwe are likely to colour the attitudes of potential investors and many western governments towards this country.

In view of this, the President’s announcement that he has appointed a commission of inquiry to look into post-election violence is to be given a cautious welcome. Cautious because there are several problems with the commission, as will be explained in this bulletin.

The President’s Announcement

The announcement was given in a statement issued by the President on 29th August. In it he said that he had appointed a seven-member commission consisting of local, regional and international members “who have been appointed in terms of the Commission [sic] of Inquiry Act [Chapter 10:07].” The commission’s terms of reference, he went on, were as follows:

a)to inquire into the circumstances leading to the 1st of August 2018, post-election violence;

b)to identify the actors and their leaders, their motive and strategies employed in the protests;

c)to inquire into the intervention by the Zimbabwe Republic Police in the maintenance of law and order;

d)to investigate the circumstances which necessitated the involvement of the military in assisting in the maintenance of law and order;

e)to consider whether the degree of force used was appropriate to the ensuing threat to public safety, law and order;

f)to assess extent of damage/injury caused thereof [sic];

g)to investigate any other matters which the Commission of Inquiry may deem appropriate and relevant to the inquiry;

h)to make suitable recommendations; and

i)to report to the President in writing, the result of the inquiry within a period of three months from the date of swearing-in of the Commissioners.

The President’s statement ended by saying “A notice to the above effect, will be gazetted in accordance with the law.”

Problems Regarding Appointment of Commission

There are several problems:

The appointment of the Commission was not legal

Section 110(6) of the Constitution states: “In the exercise of his or her functions, the President must act on the advice of the Cabinet, except when he or she is acting in terms of subsection (2) above.” [Appointing a Commission of Inquiry does not come under subsection (2) see below.]

When the President purportedly appointed the Commission there was no Cabinet to advise him. Only on the 30th August, shortly before he left for China, did he appoint two Vice-Presidents and by doing so formed a Cabinet of three – himself and the Vice-Presidents. Whatever advice the now Vice-Presidents may have given him before then they could have given only as informal advisers, not as Cabinet members, because when they gave it they were not Vice-Presidents.

Although section 110(6) of the Constitution, quoted above, allows the President to act without Cabinet advice when exercising functions under subsection (2) of the section, appointing commissions of inquiry is not one of those functions. Subsection (2)(d) mentions “making appointments which the Constitution or legislation requires the President to make”, but under the Commissions of Inquiry Act the appointment of a commission is discretionary: the President is never required to appoint one. Hence, if he does he must act on the advice of the Cabinet.

It should be pointed out that the proclamation establishing the commission has not been published. So legally the commission is not yet in existence, because commissions of inquiry are established “by proclamation” [section 2 of the Commissions of Inquiry Act]. If before the proclamation is published the President gets the approval of his Cabinet – and it is to be hoped that by then he will have appointed a real Cabinet, not a token one – then the commission will be properly appointed.

The importance of establishing the commission in accordance with the law cannot be over-emphasised. Under the Commissions of Inquiry Act a commission has extensive powers of investigation:

it can summon witnesses and compel them to give evidence on oath, and witnesses who fail to attend or refuse to give evidence can be punished by up to six months’ imprisonment

anyone who tries to disrupt the commission’s proceedings can likewise be punished

anyone who lies when giving evidence to the commission can be punished by up to two years’ imprisonment.

If the commission is not legally established, however, it will not be able to exercise any of those powers.

If the President had consulted his lawyers, they might have prevented him from giving the impression that he had already established the commission when legally he could not have done so.

Terms of reference

The commission’s stated terms of reference appear to assume that the soldiers who shot dead six protesters were entitled to be on the streets of Harare fully armed with live ammunition, and that their actions were justified. Thus paragraph (d) of the terms calls on the commission “to investigate the circumstances which necessitated the involvement of the military” in maintaining law and order. The questions in many people’s minds are: who called out the military, and was it necessary to do so? The answers to those questions are pertinent: only the President could legally have called out the military in terms of section 213 of the Constitution, but he has suggested he did not do so. If he didn’t, then who did? As to whether it was necessary to call out the military, that question cannot be answered by a commission whose terms of reference tell it that it was indeed necessary.

A further problem with the terms of reference is that they relate only to the events of the 1st August, not to incidents of politically-motivated violence that allegedly occurred after that date, perpetrated mainly against opposition supporters. These alleged incidents have been reported and commented on both inside and outside the country, yet the commission will have no mandate to investigate them.

Yet another problem is that the terms of reference do not state specifically that the commission should recommend measures to prevent similar tragic incidents occurring in the future. That, surely, is one of the most important reasons for establishing the commission.

These difficulties could have been avoided if the President had consulted more widely. Consultation with civil society and opposition parties would have given him better insight into the concerns of Zimbabweans outside his own party and, perhaps, of foreign observers.

The membership of the commission

Veritas does not wish to comment on the suitability of the persons appointed to the Commission, except to say that some of the local appointments have been criticised for not being impartial. The criticisms would have been fewer, or would have had less validity, if the President had consulted more widely before making the appointments.

Conclusion

There are several points that should be made in conclusion:

Due attention must be paid to the laws of Zimbabwe

Once it is legally established, whatever its precise terms of reference, the commission will have to pay proper attention to our constitution and laws.

In particular:

All killing is unlawful in Zimbabwe. Under section 86(3) of the Constitution, the right to life is sacrosanct and no law can limit or violate it [the only exception is that a court of law can impose the death penalty on people convicted of aggravated murder]. Some foreign commissioners may come from countries where it is legal for the police and security forces to kill rioters; they must be disabused of the notion that the same applies in this country.

Only the President can authorise the deployment of the Defence Forces. Under section 213 of the Constitution, only the President can authorise the deployment of the Defence Forces in support of the police in the maintenance of law and order. Although section 37 of the Public Order and Security Act suggests that the Minister of Defence can authorise their deployment if requested by the Minister of Home Affairs, the section is contrary to the Constitution and therefore invalid.

Need for transparency

The commission, once it is established, must conduct its proceedings with the utmost transparency to avoid any suspicion of cover-up. All witnesses should have to give their evidence in public as is the general rule for commissions of inquiry [section 9 of the Commissions of Inquiry Act]. The purpose of the commission is not just to appease foreigners so that we can get their support and investment: its main object should be to satisfy the people of Zimbabwe that the tragic events of the 1st August have been thoroughly probed and that the commission’s conclusions represent the real truth of what happened. This can only be achieved if it conducts itself transparently.

The transparency moreover should not be confined to the commission’s proceedings. Once the commission has submitted its report to the President, he must have it presented to Parliament, complete and unaltered.

Safety of Witnesses

Witnesses should give their evidence in public for the sake of transparency, as we have said, but measures should be put in place to prevent victims being threatened or subjected to retribution for testifying before the commission. A commission of inquiry has no power to take such measures or even to order them to be taken, so the government will have to give cast-iron guarantees that witnesses will not be harmed on account of their evidence. If those guarantees are not given, witnesses may be reluctant to fully cooperate before the commission.

A final point is: it is hoped that the Zimbabwe Human Rights Commission and the National Peace and Reconciliation Commission will both conduct their own inquiries. Both these Constitutional Commissions have power to investigate incidents such as occurred on the 1st August and both Commissions have power to provide victims with some redress [which a Commission of Inquiry does not have]. Both Commissions send their reports to Parliament and both can make recommendations and ensure follow-up.